Information & Inspection Powers: conditions and safeguards: restrictions: legal professional privilege: how LLP disputes are resolved
This explains what to do if you receive a claim, in response to an informal request or formal notice, that material can be withheld under legal professional privilege.
Where an information notice has not yet been issued
Where an officer has made an informal request for information or documents, a person may advise that the items requested are covered by legal professional privilege (LPP). If the officer does not believe the items are covered by LPP they may be able to resolve the issue by exploring informal solutions such as
- offering to view disputed material without taking notes
- advising that an individual outside the case team will consider the disputed material or
- offering to do a sample test of the documents.
If informal solutions are denied and the officer believes that relevant non LPP material is being withheld they should proceed to issue a notice under Schedule 36 (1) and ask for a list of withheld information and documents under LPP Dispute Regulations 2009 SI 1916 (see below).
Where an information notice has been issued
The dispute resolution process for legal professional privilege (LPP) is statutory with tight deadlines of 20 working days at each stage. We have no discretion on resolution: either we agree with the person or the tribunal must adjudicate. Similarly we have no discretion on application of the time limits.
An overview of how the time scale works might be:
- An officer issues a notice to a person which includes the paragraphs about LPP in CH22250, seeking relevant documents.
- HMRC must receive a list of those withheld on LPP grounds no later than 20 working days from the date given for providing the information or documents in the notice.
- If a list is received, the officer must consider whether the documents on the list are subject to LPP.
- If yes, the officer must inform the person that they agree the documents are subject to LPP and the person need not supply them.
- If no, the officer must contact Tax, Administration, Litigation and Advice (TALA) (or Solicitors if already involved in case.) They must do this urgently in view of the 20 working day limit for notifying the person.
- Where, following referral to TALA, HMRC agrees that the documents are subject to LPP and the person need not supply them, the officer must inform the person accordingly.
- Where, however, following referral to TALA, HMRC does not accept that the documents are subject to LPP, the officer must notify the person which documents they consider are not subject to LPP using the letter in CH230240. The person must receive this letter within 20 working days of HMRC receiving the list.
- The person has 20 working days to either provide the documents listed in the officer’s letter or apply to the tribunal to resolve the dispute.
When the person applies to the tribunal, it will resolve disputes about whether information or documents are privileged. However, HMRC cannot refer any dispute about whether information or documents are privileged to the tribunal.
More detail on the operational procedures for resolving disputes, including the strict timelines involved, is at CH230000.
FA08/SCH36/PARA23 (3) & (4)